The International Rule of Law Part Deux: Good Faith, Kyoto and Canada

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It has been a while since I wanted to write this post. As work and graduate applications kept my mind away from this blog, the situation that inspired this post evolved, evolved further, ended and restarted. In the end, I’m glad I waited as the developments made this topic much more interesting. That topic is the involvement of Canada in the Durban Conference negotiations and its Canadian climax: the repudiation of the Kyoto Protocol.[1]

After what can be considered many failed attempts to agree on the next step to implement the United Nations Framework Convention on Climate Change[2] (UNFCCC) (basically the replacement of Kyoto after its end), the State Parties to the UNFCCC met in Durban, South Africa, at the 17th conference of the parties (COP17), hoping that some agreement could be reached over the pressing issue of climate change. The Copenhagen Conference resulted in what many considered a sad failure. However, it seemed that the international community had matured sufficiently to reach something concrete in Durban. Sadly, that statement does not apply to Canada, who seems to have regressed in it international maturity level since 2006.

Canada internationally, on the issue of climate change (or any environmental issue really), has moved from bad to worse even surpassing its southern neighbour the United States of America. No one expected the Conservatives to act as shining knights defending Kyoto, but I think a minimum of respect for legal rules and for the international community was due. And at first it is what they did; the Canadian Government critiqued the substance of Kyoto but played inside the rules established by Kyoto, the UNFCCC and general rules of international law. Nevertheless, they slowly slid down the respectable path towards its limit, and finally jumped over it at Durban. Canada was not a model at Copenhagen, but at least it didn’t go as far as it did in Durban considering that – in my view – Canada breached the international rule of law this time.

Canada, before 15 December 2011 (the decision to repudiate the Protocol was announced on 12 December), was a party to the Kyoto Protocol and the UNFCCC (it is still a party to the UNFCCC). Since the COP17 ended on 9 December 2011, Canada was still a party to Kyoto during the conference and thus bound by it. It didn’t seem to stop Canada from acting against the interest expressed in the legal instrument.

The behaviour of Canada during the conference can be qualified has disgraceful. Not only was it one of the only states refusing categorically new binding greenhouse gases emissions reduction targets of some kind, but Canada’s attitude was obviously counter-productive and can even be considered bad faith. How can I make such an assertion? By simply looking at Canada’s sabotaging behaviour at Durban and its repudiation of Kyoto a few days later. It is clear that the federal government intended to repudiate Kyoto. The honest and ethical thing to do would have been to repudiate Kyoto before the conference or at least to remain silent on most issues during the COP17. Furthermore, considering the obligations of the Protocol and the Convention, it seems to me that Canada’s attitude at the conference and its refusal to implement any of its climate change obligations are contrary to the customary international norm – codified in the Vienna Convention on the Law of Treaties[3] – stating that treaty obligations shall be performed in good faith. The Statement of the Minter of the Environment (Kyoto is obsolete) and the Prime Minister (the Kyoto targets are stupid) are further evidence.[4] I feel comfortable enough to even say that Canada’s behaviour frustrated the general purpose of Kyoto and the UNFCCC.

Moreover, the core argument of Canada to refuse any binding targets was that the emerging world did not want legally binding targets. In the end even China was opened to the idea of binding targets which left Canada with few valid arguments to defend its untenable position. Regardless, Canada ratified the UNFCC which enshrines the principle of common but differentiated responsibility.[5] In summary, that principle means that the International Community recognizes that developing countries contributed far less to the problem of climate change than the developed world. Therefore, developing countries are not held to the same standards and are permitted to pollute more to attain a certain level of development. Canada, by ratifying the UNFCCC, approved the principle and cannot use it as an excuse to refuse binding targets. In fact, such behaviour is further evidence of bad faith. To make matters worse, Canada is far from being a model in greenhouse gases emissions reduction and thus lack any legitimacy to ask any State to do more.

Finally, Canada had nothing to gain from sabotaging the next Kyoto agreement and had little to lose as it clearly did not intend to participate in the next regime (even though it could have negotiated new target to fulfill Kyoto and the new agreement thus avoiding the “penalties”, aka buying emissions credits), at least in any meaningful way. Had it had a minimum of respect for international ethic and law, it would have left the rest of the international community alone to negotiate in good faith. In the end, it seems to me, sadly unsurprisingly, that Canada under the Conservatives has little respect for the international rule of law and seems incapable of a modicum of international decorum. The world would have been better off without Canada’s “involvement” in Durban.

As the latest development, on the national level, Prof. Daniel Turp of the Université de Montréal filed an application for judicial review[6] of the decision of the Canadian government to repudiate Kyoto. He is claiming that repudiation of the Protocol without repealing the Kyoto Implementation Act[7] is illegal and thus null and void. See his website for more info as I cannot discuss this matter further since it is before of the Federal Court. As a final thought, it is interesting to see how this case, involving the concept of the rule of law at the national level, will play out.


[1] Kyoto Protocol to the United Nations Framework Convention on Climate Change, 11 December 1997, 2303 UNTS 148. http://unfccc.int/essential_background/kyoto_protocol/items/1678.php

[2] United Nations Framework Convention on Climate Change, 9 May 1992, 1771 UNTS 107. http://unfccc.int/essential_background/convention/background/items/1349.php

[3] Article 26: Every treaty in force is binding upon the parties to it and must be performed by them in good faith. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331. http://www.ilsa.org/jessup/jessup11/basicmats/VCLT.pdf; see also http://anthonydamato.law.northwestern.edu/encyclopedia/good-faith.pdf

[5] UNFCCC Article 3-1: 1. The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.

[6] To read the application see http://danielturpqc.org/upload/Equipe_Kyoto-_Avis_de_demande-_Version_finale_2012-01-13.pdf (only in French when this post was written)

[7] Kyoto Protocol Implementation Act, SC 2007, c 30, http://laws-lois.justice.gc.ca/PDF/K-9.5.pdf

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4 thoughts on “The International Rule of Law Part Deux: Good Faith, Kyoto and Canada

  1. Pingback: Bye Bye Miss Environmental Law | jurisblogger

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